100K. Grounds for granting applications
(1) A Local Court must grant an application if the applicant is the informant and if it is satisfied that there is just cause why the application should be granted.
(2) A Local Court must grant an application if the applicant is a person other than the informant and if it is satisfied that:
(a) the defendant was not aware of the relevant proceedings until the proceedings were completed or the sentence was imposed or the other action was taken, or
(b) the defendant was otherwise hindered by accident, illness, misadventure or other cause from taking action in relation to the relevant proceedings, or
(c) having regard to the circumstances of the case, there is other just cause why the application should be granted.
COUNSEL FOR THE PLAINTIFF'S SUBMISSIONS
15 The steps in counsel for the plaintiff's argument can be summarised as follows.
16 1. The offence with which the plaintiff was charged was an indictable offence.
17 2. Subject to any statutory provision to the contrary, an indictable offence must be dealt with on indictment, that is a person charged with an indictable offence has a right to be tried by a jury.
18 3. In the present case the only statutory provisions which might provide to the contrary were in Pt 2 Div 3 of the Criminal Procedure Act. Section 75A to 75F of the Justices Act, which the Local Court magistrate purported to apply on 4 June 2002, do not confer any jurisdiction to deal summarily with indictable offences; these sections of the Justices Act merely authorise the Local Court to adopt certain procedures for dealing with offences which are able to be dealt with summarily.
19 4. The right of a person charged with an indictable offence to have the offence dealt with on indictment, including the right to be tried by a jury, is an important right of a criminal accused and the provisions of Pt 2 Div 3 of the Criminal Procedure Act should be interpreted, in accordance with a well recognised principle of statutory interpretation, as not abrogating or qualifying that right, unless and except to the extent that the provisions of the Act clearly so provide.
20 5. The offence with which the plaintiff was charged, breaking and entering and stealing property the value of which did not exceed $15,000, is an offence listed in Pt 2 of Table 1 to Sch 1 to the Criminal Procedure Act.
21 6. Section 20 of the Criminal Procedure Act provides that an indictable offence listed in Table 1 to Sch 1 is to be dealt with summarily by a Local Court, unless the prosecuting authority or the person charged elects in accordance with Pt 2 Div 3 of the Act to have the offence dealt with on indictment.
22 7. Section 21 of the Criminal Procedure Act provides that an indictable offence listed in Table 1 to Sch 1 is, if no election is made in accordance with this Division", to be dealt with summarily as if it were a summary offence.
23 8. Part 2 Div 3 of the Criminal Procedure Act contains a number of provisions, the obvious purpose of which is to ensure that a person charged with an indictable offence listed in Table 1 to Sch 1 should be provided with the means of making a considered, informed decision on whether he or she should elect to have the offence dealt with on indictment. These provisions include ss 23 and 25. Under s 23 a time is to fixed by the Local Court within which any election to have the offence dealt with on indictment must be made. Under s 25, when a person charged with such an offence first appears before a Local Court in respect of the offence, the court is to inform the person charged, orally and in a written statement, of the person's right to make an election and the consequences of not making an election. The form of the written statement is to be prescribed by regulations made under the Act and such a form has in fact been prescribed.
24 Under s 25 the court is to fix a time within which the prosecuting authority is to serve, or cause to be served, on the person charged a copy of the brief of evidence relating to the offence and a copy of the person's criminal record (if any) known to the prosecuting authority and the prosecuting authority is required to serve a copy of the brief of evidence and a copy of the person's criminal record (if any) within the time fixed by the Local Court. The time fixed for service of these documents must be before the time fixed by the court for the making of an election in respect of the offence. If the brief of evidence or the criminal record are not served within the time fixed, the time fixed for the making of an election must be extended. The obvious purpose of these provisions is to ensure that a person charged will have the opportunity of considering these documents, before he or she has to decide whether to make an election.
25 9. Having regard to the terms and obvious purpose of these provisions of Pt 2 Div 3 of the Criminal Procedure Act and to the principle of statutory interpretation already referred to, the words in s 21 of the Criminal Procedure Act "If no election is made in accordance with this Division" should be interpreted, not as meaning simply that the person charged has not in fact made an election to have the offence dealt with on indictment, but as meaning that the person charged has not made an election to have the offence dealt with on indictment, after the provisions of Pt 2 Div 3 including ss 23 and 25 have been carried into effect, so that the person charged has been provided with the means of making a considered, informed decision on whether he or she should make an election.
26 10. In the present case the provisions of Pt 2 Div 3 were not carried into effect. For example, no time was fixed by the Local Court within which an election would have to be made and no copy of the brief of evidence relating to the offence was served on the plaintiff.
27 11. Consequently, on the true interpretation of s 21 of the Criminal Procedure Act, it was not the case that no election had been made in accordance with Pt 2 Div 3 of the Criminal Procedure Act and the offence with which the plaintiff was charged could not be dealt with summarily as if it were a summary offence.
28 12. On 4 June 2002 when the magistrate purported to deal summarily with the offence charged against the plaintiff, the magistrate exceeded his jurisdiction.
29 It was submitted by counsel for the plaintiff that the plaintiff's failure to appear at the Local Court on 4 June 2002 did not mean that the offence with which the plaintiff was charged could never be dealt with summarily. What the magistrate could, and should, have done on 4 June 2002 was to issue a warrant for the apprehension of the plaintiff pursuant to either s 23 or possibly s 31 of the Justices Act. If such a warrant had been issued and the plaintiff had been apprehended pursuant to the warrant and had been brought before the Local Court, the provisions of Pt 2 Div 3 of the Criminal Procedure Act, including ss 23 and 25, could have been carried into effect by the Local Court and by the prosecuting authority. If, after the provisions of Pt 2 Div 3 had been carried into effect by the Local Court and by the prosecuting authority, the plaintiff did not make an election to have the offence dealt with on indictment, the Local Court could then have properly dealt with the offence summarily. For example, if, after the Local Court and the prosecuting authority had carried into effect ss 23 and 25 of the Criminal Procedure Act, the plaintiff had not appeared in the Local Court on the date fixed by the Local Court for the making of any election, the Local Court could have proceeded to deal with the offence summarily, including proceeding under ss 75A to 75F of the Justices Act.
30 With regard to what counsel for the defendant in his submissions submitted were safeguards which would protect a person in the plaintiff's position against any possible injustice if the interpretation of Pt 2 Div 3 contended for by counsel for the defendant was adopted, counsel for the plaintiff submitted that a person charged with an indictable offence should not be placed in a position where, in order that he should not suffer injustice, he has to rely on decisions which might or might not be made by others; for example, by the prosecuting authority itself electing to have an offence dealt with on indictment, or a Local Court magistrate declining to proceed ex parte under s 75A to s 75F of the Justices Act, or a Local Court magistrate proceeding ex parte requiring additional evidence to be provided and not simply determining the matter on the basis of the averments in the information, or if an application is brought by a person who has been convicted ex parte for the annulment of the ex parte conviction, the Local Court being satisfied that grounds have been made out for the granting of the application.